The State v Pius Patrick Kosa Jnr

• Jurisdiction: Papua New Guinea
• Judge: Susame, AJ
• Judgment Date: 22 March 2018
• Citation: (2018) N7163
• Court: National Court
• Year: 2018
• Judgement Number: N7163

Full : CR No 950 of 2017; The State v Pius Patrick Kosa Jnr (2018) N7163

National Court: Susame, AJ

Judgment Delivered: 22 March 2018

N7163

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR N0. 950 OF 2017

THE STATE

V

PIUS PATRICK KOSA JNR

Kokopo: Susame, AJ

2018: 23 February & 22 March

CRIMINAL LAW – Sentence –Offence of arson- s. 436(a) Criminal Code – Sentencing guidelines on early plea –Range 10 years head sentence for dwelling houses & institutional buildings & 5 years head sentence for hauswin or garden house - Prisoner remorseful –Means assessment and pre-sentence reports – Compensation – Court’s power to order beyond the maximum limit set by Criminal Law (Compensation) Act 1991 – s 18 Probation Act – ss.155 (4) & 166 (1) Constitution - Burning down of income earning building – head sentence of 7 years – wholly suspended upon probation with conditions – Prisoner to be recalled for review of sentence -

Cases cited:

Emil Kongian & ors v The State (2007) SC982

State v Ipu Samuel Yomb [1992] PNGLR26

The State v Seye Wasea Bukere (1999) N1848

The State v Joachim N6537 (2014)

The State v Yeskulu (2003) N2241

The State v Bart Kiohin Mais & Anor (2005) N2811

The State v Ngot Ngot & Eremas Mutiul (2016) N6364

Counsel:

Ms. J. Batil, for the State

Ms. J. Ainui, for the Prisoner

DECISION ON SENTENCE

22nd March, 2018

1. SUSAME, AJ: The prisoner has pleaded guilty to a charge of arson on arraignment of an indictment on 23rd February 2018 charging him. He was charged that on 10th April 2017, he had wilfully and unlawfully set fire to Jecil Fuel Distributors Depot building owned by Stanley Gogorea at Palmalmal, East New Britain Province.

FACTS

2. The facts agreed by the prosecution and defence are that prisoner was then working for Jecil Fuel Distributors. Between 1pm and 2pm on 10th April 2017, the prisoner walked into the depot premises, pumped diesel from a drum into a 20 litres container. He poured the diesel in and around the building. He took some pieces of wood and pushed them under a table inside the building. He then rolled up a piece of paper, lit it with a match and started the fire under the table. The fire spread throughout the whole building burning down everything into ashes.

3. Those facts were put to the prisoner on arraignment. I entered a provisional plea and had to read the evidence in the committal file. I was satisfied the evidence in the file covered all elements of the charge and that the prisoner had made confessional statements committing the crime. Accordingly, I found the prisoner guilty of the charge and entered conviction against him.

4. Ms. Ainui then sought adjournment for filing of Means Assessment Report, pre-sentence report and filing of submissions on sentence. Adjournment was granted for hearing of submission on 9th March 2018. However, because pre-sentence report and means assessment report were not completed in time hearing of submissions was put off to 13th March at. 9.30 am. All documents have been filed and in order when matter returned to court on 13th March. Decision on sentence was deferred which is now delivered.

ARGUEMENTS

5. Court has read and heard respective submissions filed. Again both counsels have assisted the court well with comparative decisions and factors to consider in reaching a decision.

6. Miss. Batil submitted though there are mitigating factors, factors in aggravation should be given more weight. Hence, a punitive and deterrent sentence should be imposed and in the light of sentencing trend starting point of 10 years would be appropriate in this case.

7. Ms. Ainui for the prisoner argued otherwise. She submitted factors in mitigation outweigh the aggravating factors. This case involves burning down of a makeshift temporary building and does not fall within worse category of arson cases. Starting point should be 5 years following State v Ipu Samuel Yomb [1992] PNGLR 26. This case involved building down of a dwelling house with occupants inside but managed to escape alive. She however pleaded for the prisoner for a sentence of 4 years to be imposed and wholly suspended with conditions in view of the mitigating factors favoring the prisoner.

COMPARABLE JUDGMENTS

8. In addition to State v Ipu Samuel Yomb (supra) other plea cases counsels made reference to are:

· The State v Seye Wasea Bukere (1999) N1848 (burning of a classroom)

· The State v Joachim N6537 (2014) (burning of a dwelling house)

· The State v Yeskulu (2003) N2241 (burning of a bush material school classroom)

· The State v Bart Kiohin Mais & Anor (2005) N2811 (burning of a semi-permanent dwelling house)

SENTENCING GUIDELINES

9. I have read the cases that were referred to above. The case that first attempted to establish some guidelines on arson cases was in The State v Ipu Samuel Yomb by Doherty J in 1992. These factors were considered:

1. The deliberate or reckless putting of lives at risk

2. The deliberate pouring of kerosene and setting fire to the roof, knowing that people were inside

3. The deliberate locking of the door, so preventing escape by the occupants

4. The deliberate cold-blooded planning of the offence

5. The value of the house and its contents to the occupants

6. The complete lack of provocation offered to the defendant by the occupants and their children

10. Her Honour thought 6 to 7 years head sentence could have been imposed but considering the prisoner’s plea and good behavior a 5 years custodial sentence was imposed.

11. In The State v Yeskulu (supra) when His Honour Kandakasi J after critically examining the sentencing trend and echoing the need for increasing sentencing tariffs on account of increasing instances of arson cases in recent times decided sentencing prisoners will also depend on the types of buildings destroyed. These are:

1. A dwelling house with people inside

2. A dwelling house without any occupants

3. Public institutions such as school. hospital, or offices with occupants

4. Public institutions such as school. hospital, or offices without occupants

5. A haus wind (rest hut) or garden house or a run-down or dilapidated or incomplete house

12. His Honour proceeded to impose a 7 years jail term which was wholly suspended and prisoner placed on Probation with conditions considering prisoner’s favourable report.

13. Then in 2005 His Honour Cannings J in The State v Bart Kiohin Mais & Anor (supra) expounded the guidelines and formulated the following questions:

1. Did the offender cause damage of relatively low value?

2. Was there no person or class of persons directly affected by the damage or destruction of the property?

3. Did the offender not put lives at risk?

4. Was there only one offender?

5. Did the offender not plan the offence in a deliberate and calculated manner?

6. Did the owner of the property or any person provoke the offender in the non-legal sense?

7. Was it an isolated incident?

8. Did the offender give himself up after the incident?

9. Did the offender cooperate with the police in their investigations?

10. Has the offender done anything tangible towards repairing his wrong, e.g. offering compensation engaging in a peace and reconciliation ceremony, personally or publicly apologizing for what he did

11. Has the offender not caused further trouble since the incident?

12. Has the offender genuinely expressed remorse?

13. Is this his first offence?

14. Can the offender be regarded as a youthful offender?

15. Are there any other circumstances of the incident or the offender that warranted mitigation of the head sentence?

14. His Honour imposed a sentence of 2 years.

15. A survey of cases revealed that sentencing on plea cases range from 3 to 8 years of all categories of arson cases. Finally, a three (3) men bench of Supreme Court in Emil Kongian & ors v The State (2007) SC982 in deliberating on an appeal against conviction and sentence by His Honour Kandakasi J in the National Court endorsed and approved His Honor’s views and decided that for burning of a dwelling house or public institution buildings head sentence of 10 years should be imposed and 5 years sentence for burning of a hauswin or a garden house.

OFFENCE & PENALTY REGIME

“436 ARSON.

A person who wilfully and unlawfully sets fire to–

(a) a building or structure, whether completed or not; or

(b) a vessel, whether completed or not; or

(c) a stack of cultivated vegetable produce; or

(d) a stack of mineral or vegetable fuel; or

(e) a mine, or the workings, fittings or appliances of a mine; or

(f) an aircraft or motor vehicle,

is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.”

AGGARVATION FACTORS

Ø Prisoner deliberately set alight the fuel shed by using diesel fuel.

Ø Value of the Fuel shed & various properties destroyed is estimated at K30, 600.20.

Ø No restitution or payment of compensation made and reconciliation.

MITIGATING FACTORS

Ø Prisoner pleaded guilty

Ø Prisoner is first time offender

Ø Prisoner lived a trouble free life in the community.

Ø ...